Adwon v. State
| Decision Date | 10 April 1986 |
| Docket Number | No. 01-85-0566-CR,01-85-0566-CR |
| Citation | 708 S.W.2d 564 |
| Parties | William Edward ADWON A/K/A Mark John Campbell, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Kathryn Fagan, James M. Leitner, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., Dinah Bailey, Shirley Cornelius, Harris County Asst. Dist. Attys., Houston, for appellee.
Before EVANS, C.J., and WARREN and JACK SMITH, JJ.
A jury convicted the appellant of burglary of a habitation with intent to commit theft, and the court assessed his punishment at 16 years confinement. We affirm.
In his first two grounds of error, the appellant challenges the authority of retired Judge Wallace C. Moore to act as the trial judge in this case.
In his first ground of error, the appellant contends that the order assigning Judge Moore to the 183rd District Court of Harris County expired by its own terms before the commencement of the instant trial. He points to the order appointing Judge Moore "for a period of one day beginning the fourth day of June 1985," which further provides that the assignment "shall continue after the specified period of time as may be necessary for the assigned Judge to complete trial of any case or cases begun during this period...." The appellant argues that because the trial of the present case did not begin until June 11, 1985, Judge Moore had no authority under the order of assignment to hear the case.
In his second ground of error, the appellant contends that the record is silent as to whether the appointment of Judge Wallace C. Moore was in compliance with the requirements of former Tex.Rev.Civ.Stat.Ann. art. 200a, sec. 5f (recodified as Tex.Gov.Code Ann. sec. 74.061 (Vernon Supp.1986)). That statute provided that:
Notwithstanding any other provision of this Act, neither the chief justice nor the presiding judge of the administrative judicial district in which Harris County is located may assign a judge to a court in Harris County if the regular district judge is present or trying cases unless the assignment is for the regular docket of the:
(1) presiding administrative judge and the judge is present attending to administrative duties; or
(2) presiding judge of a court created by the legislature and the judge is trying a capital murder case.
Ch. 889, sec. 26, 1983 Tex.Gen.Laws 4975, repealed by ch. 480, sec. 26(1), 1985 Tex.Gen.Laws 4085.
As a retired district judge who has elected to continue in his judicial capacity, Judge Moore was not a "special" judge, but was still a district judge. Herrod v. State, 650 S.W.2d 814 (Tex.Crim.App.1983); Olivares v. State, 693 S.W.2d 486 (Tex.App.--San Antonio 1985, pet dism'd). Therefore, no formal order was needed for him to preside over the case, Crawford v. State, 509 S.W.2d 582 (Tex.Crim.App.1974) and there was no statutory requirement that the circumstances authorizing his assignment be reflected in the court's permanent records. See Matthews v. State, 471 S.W.2d 834 (Tex.Crim.App.1971); compare Williams v. State, 677 S.W.2d 584, 586 (Tex.App.--Austin 1984, no pet.) (requiring entry in minutes of statutory basis for appointment of special judge under Tex.Code Crim.P.Ann. art. 30.05 (Vernon Supp.1986). In the absence of any showing to the contrary, we must presume that Judge Moore was properly assigned to preside over the trial. Olivares v. State, 693 S.W.2d 486; Buchanan v. State, 471 S.W.2d 401, 404 (Tex.Crim.App.1971), cert. denied, 405 U.S. 930, 92 S.Ct. 984, 30 L.Ed.2d 804 (1972).
We overrule the first and second grounds of error.
In his third ground of error, the appellant contends that the trial court erred in assessing his punishment without first ordering a presentence investigation.
Tex.Code Crim.P.Ann. art. 42.12, sec. 4 (Vernon 1979) originally provided that:
Sec. 4. When directed by the court, a probation officer shall fully investigate and report to the court in writing the circumstances of the offense, criminal record, social history and present condition of the defendant. Whenever practicable, such investigation shall include a physical and mental examination of the defendant. Defendant, if not represented by counsel, counsel for defendant and counsel for the state shall be afforded an opportunity to see a copy of the report upon request. If a defendant is committed to any institution the probation officer shall send a report of such investigation to the institution at the time of commitment. (Emphasis added.)
On May 25, 1983, section 4 of article 42.12 was amended by Tex.H.B. 1178, ch. 343, sec. 1, 1983 Tex.Gen.Laws 1790, to read, in pertinent part, as follows:
Sec. 4. (a) Except as provided by Subsection (b) of this section, prior to the imposition of sentence by the court in a criminal case the court shall direct a probation officer to report to the court in writing on the circumstances of the offense with which the defendant is charged, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the court.
(b) The court is not required to direct a probation officer to prepare a report if:
(1) the defendant requests that a report not be made and the court agrees to the request; or
(2) the court finds that there is sufficient information in the record to permit the meaningful exercise of sentencing discretion and the court explains this finding on the record. (Emphasis added.)
On May 25, 1983, Tex.S.B. 1, ch. 303, sec. 9, 1983 Tex.Gen. Laws 1568, 1587 was enacted as an amendment to section 4 of art. 42.12. That amendment, in addition to adding new provisions, reenacted the original reading of section 4. See original provision set out above.
In the case of State ex rel. Turner v. MacDonald, 676 S.W.2d 375 (Tex.Crim.App.1984), the Court of Criminal Appeals held that H.B. 1178 and S.B. 1, both enacted in 1983, were inconsistent and irreconcilable. Because S.B. 1 was the latest in date of enactment, its provisions were held to be controlling. To the extent that H.B. 1178 was inconsistent, the Court of Criminal Appeals found it to be invalid. As a result, the original reading of section 4 of article 42.12, as reenacted by S.B. 1, is the law presently binding on the trial courts. Cf. Hughes v. State, 691 S.W.2d 118 (Tex.App.--Beaumont 1985, pet. ref'd).
The present reading of section 4(a), as reenacted by S.B. 1, leaves the ordering of a presentence investigation within the discretion of the trial court. See also Tex.Code Crim.P.Ann. art. 37.07, sec. 3(d) (Vernon Supp.1986). Thus, the trial court was not obligated by law to order a presentence investigation and acted within its discretion when it decided not to do so.
We overrule the appellant's third ground of error.
The appellant next contends that the trial court erred by admitting proof of an extraneous offense.
An accused person is generally entitled to be tried only on the accusation made in the State's pleading and not on some collateral crime, or for being a criminal generally. Moore v. State, 700 S.W.2d 193, 199 (Tex.Crim.App.1985). Thus, evidence of extraneous offenses is generally not admissible. Extraneous offenses may become admissible, however, upon a showing by the prosecution that (1) the transaction is relevant to a material issue in the case; and (2) the relevancy value of the evidence outweighs its inflammatory or prejudicial potential. Williams v. State, 662 S.W.2d 344 (Tex.Crim.App.1983).
The record reflects that when the prosecutor was questioning Sgt. Jett, a police officer, he asked the officer whether he had previously known the defendant by the name of Mark Campbell. On cross-examination, appellant's counsel questioned Sgt. Jett about the circumstances under which the appellant first used an alias. The relevant portion of that testimony is as follows:
Q. Sergeant Jett, do you know how Billy Adwon came to be known as Mark Campbell?
A. I believe he was arrested under that name.
Q. Didn't the officer call him Mark Campbell?
A. No, ma'am.
Q. Oh, Jeez....
The prosecution subsequently called Officer Robert H. Thomas and elicited testimony concerning the alias of the appellant. His testimony is as follows:
Q. Officer Thomas, on February 17th, 1985, did you have an occasion to come into contact with someone whom you later learned to be a William Adwon?
A. Yes, ma'am, I did.
Q. Do you see that person in the courtroom today?
A. Yes, ma'am, it's the gentleman with the blue jeans and blue shirt sitting at the other table.
Q. (By Ms. Cornelius) Where were you when you first saw the defendant?
A. I was on routine patrol in the Memorial area.
Q. What brought your attention to the defendant?
A. We had just gotten to work around 4:00 o'clock and this was getting close to 5:00 o'clock and we were listening to the radio as there was a chase going on in our area.
Q. (By Ms. Cornelius) There was a chase in your area?
A. Yes, a chase, a motorcycle chase going on in the area.
Q. (By Ms. Cornelius) Officer Thomas, you a few minutes before pointed out the defendant as being someone named William Adwon that you had come into contact with on February 17th, 1985. Did you at any time place the defendant under arrest?
A. Yes, ma'am, I have.
Q. And was it that day?
A. It was on that day, yes, ma'am.
Q. When you placed him under arrest, did you know his name?
A. No, ma'am, he told me a name.
Q. But you did not--
A. No, ma'am.
Q. You have not...
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